JUDGMENT V. GOPALA GOWDA, C.J. – This appeal is filed by the Oriental Insurance Company represented by its Divisional Manager, questioning the correctness of the judgment dated 30.11.1998 passed by the Commissioner for Workmen's Compensation, Ganjam, Berhampur, W.C. Case NO.6 of 1997 urging various facts and legal contentions. 2. The claimant-respondent filed claim petition before the Commissioner for Workmen's Compensation seeking for compensation on the allegation that he was a workman in terms of Section 2(1)(n) of the Workmen's Compensation Act, 1923 (for short, "the Act") serving under respondent No.2 on contractual basis as helper. During the course of employment, he suffered injury and sustained loss of earning capacity. Therefore, the claim petition was filed seeking compensation. Learned Commissioner for Workmen Compensation after conducting trial directed the Insurance Company to pay compensation amount of Rs.29,281/-, which is challenged by the appellant in this appeal urging various facts and legal contentions. 3. It is urged by the learned counsel Mr. Dutta appearing on behalf of the appellant-Insurance Company that the judgment passed by the Commissioner is based on surmises and conjectures. Hence, the same is liable to be set aside. 4. It is contended that the Commissioner has erred in law in holding that respondent No.1 is a workman as defined under the Act and that the accident took place in course of his employment. Section 2(1)(n) of the Act defines that workman means any person other than a person whose employment is of casual nature. As such, if a person is employed in such category, he would not be a workman. Respondent No.1 has categorically averred in the claim application that he was working under respondent No.2-owner on contractual basis as helper when the regular helper was on leave. Therefore, the nature of the employment of respondent No.1 is casual. Hence the judgment passed by the Commissioner is liable to be set aside. 5. It is further contended that the Commissioner has erred in law in holding the applicant to be a workman particularly when the owner in his written statement at paragraph-3 has clearly averred that on the date of the accident respondent No.1 was engaged temporarily as helper Therefore, the impugned judgment is bad in law and is liable to be set aside. 6. 6. Further, learned Commissioner has not taken into consideration all the police records, which shows that respondent No.1 was cleaner of the bus and sustained injury, and the cleaner is not covered under the terms of the policy. Respondent No.1 in collusion with the owner of the bus has filed claim case. Therefore, the impugned judgment is liable to set aside. 7. Further, the learned Commissioner has erred in law in holding the disability of respondent No.1 to the extent of 30% of the basis of the certificate granted by the CDMO, Gajapati, who has assessed the disability only at 40%, but the doctor has not been examined. Therefore, the learned Commissioner has erred in law not taking into consideration the legal position that in the absence of examination of the doctor no reliance could be placed on the disability certificate, as it is the only hearsay evidence and it is difficult to assess the extent of loss of earning capacity on the basis of the said certificate. 8. Further, the learned Commissioner has erred in law in not noticing that the injury mentioned in the disability certificate is not specified in the Schedule 'F' of the Act. Therefore, the qualified medical practitioner should assess the same which has not been done in this case. Therefore, the impugned judgment is bad in law and is liable to be set aside. 9. Further, the learned Commissioner has acted illegally with material irregularity in directing payment of 50% penalty and interest @ 12% per annum, if the amount is not paid within a month when the statute provides for 60 days for filing an appeal. As such, the impugned judgment is illegal and is liable to be set aside. 10. Learned counsel on behalf of the appellant places reliance on the following judgments. In the case of Delhi Transport Corporation v. Mrs. Meena Chaturvedi and others, reported in 2006 (I) TAC-61 (para-4), the Apex Court has held after interpretation of 2(1)(n) of the Act that the Act does not cover a casual worker. There was also no definite material produced to show that the claimant was employed for the purpose of the employer's trade or business. In the case of New India Assurance Co. Ltd. v. Sreedharan, reported in 1995 Vol. There was also no definite material produced to show that the claimant was employed for the purpose of the employer's trade or business. In the case of New India Assurance Co. Ltd. v. Sreedharan, reported in 1995 Vol. I TAC 393, the Full Bench of Kerala High Court has held that the statute specifically postulates that the compensation to be awarded should be proportionate to the loss of earning capacity caused by the injury as assessed by the qualified Medical Practitioner permanently. In the case of C. David v. Govind Chandra Mishra and another, reported in 1997 (I) TAC 873, this Court has held that while assessing compensation the Court has to see whether the earning capacity of the injured has been reduced in every employment and not merely in a particular employment where he was engaged at the time of accident. In the case of Pal Raj v. Divisional Controller, NEKRTC, reported in 2010 (4) TAC 79 (Para-17), the Apex Court has held that the impugned order of the High Court was only an attempt to correct the erroneous interpretation of Part-II of Schedule-I of the Workmen's Compensation Act. The Joss of earning capacity has to be computed keeping in mind the alternate employment given to the appellant on the same salary as he was enjoying while performing the duty of a bus driver. The same cannot be ignored in computing the amount of compensation which the appellant was entitled to. In the case of Pratap Narain Singh Deo v. Shrinivas Sabata and another, reported in AIR 1976 SC 222 , the Apex Court has held that on failure to pay compensation the employer is liable to pay interest and penalty. In the case of Oriental Insurance Co. Ltd. v. Jeveramma and others, reported in 1988 ACJ 671 (Para-7), the Karnataka High Court has held that the insurer is liable to pay penalty when the insurance policy is taken to cover specifically and only on the risk of injury or death of the insured. The-Insurance Company is liable to meet only the compensation payable for the risk covered and not the penalty unless the terms of the policy specifically include payment of penalty also. Penalty is not a necessary part of the compensation. Compensation is pecuniary damage payable in respect of the damage or injury caused including death. The-Insurance Company is liable to meet only the compensation payable for the risk covered and not the penalty unless the terms of the policy specifically include payment of penalty also. Penalty is not a necessary part of the compensation. Compensation is pecuniary damage payable in respect of the damage or injury caused including death. But penalty is material reparation payable for breach of duty to pay the compensation within the statutory period prescribed under the Act. Penalty is distinctly different from compensation. In the case of Sri Gopal Singh v. Sri Nilamani Pradhan, reported in 1987 Vol. I OLR 174, this Court has held that reasons to be stated in support of imposition of penalty specifically when rate of penalty depends on facts and circumstances of the case. In the case of Gautam Transport, Bhavanagar v. Jiluben Huseinbhai and others, reported in 1989 ACJ 587, the Gujarat High Court has held that the Insurance Company under the insurance policy assures that it shall indemnify the assured for all liabilities which might spring from the type of risk covered under the policy. But the Insurance Company cannot be saddled with the liability for penalty as penalty arises on account of clear violation of the statutory provisions of W.C. Act by the employer. In the case of Vedprakash Garg and others v. Premi Devi and others, reported in 1998 (I) TAC 215, the Apex Court has held that the Insurance Company is liable to pay compensation along with interest but the compensation by way of penalty imposed on the insured/employer will be paid by the employer alone. In the case of Kashibhai Rambhai Patel v. Shahabhai Somabhai Parmar and others, reported in 2000 (II) TAC 212, the Apex Court has held that the insurer cannot be made liable to pay penalty under the provisions of the W.C. Act. 11. Regarding interest, learned counsel for the appellant placed reliance upon the following decisions. In the case of National Insurance Co. Ltd., v. Mubasir Ahmed and another, reported in 2007 (II) TAC 3 (Para-9), the Apex Court after interpretation of Section 4-A(3) has held that interest is payable if there is default in paying the compensation due under this Act within one month from the date it fell due. The liability under Section 4-A was dealt with by the Apex Court in Maghar Singh v. Jashwant Singh, Appellant 1998 (9) SCC 134 . The liability under Section 4-A was dealt with by the Apex Court in Maghar Singh v. Jashwant Singh, Appellant 1998 (9) SCC 134 . By the amending Act, 14 of 1995, Section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim as the provision of Section 4-A (1) provides that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The said legal position becomes clearer on a reading of Sub-section (2) of Section 4-A of the Act It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". Significantly, legislature has not used the expression "from the date of accident." The said proposition of law supports the case of the appellant Interest awarded shall be calculated only from the date of judgment not from the date of claim petition. 12. In support of his above contention learned counsel for the appellant also placed reliance upon the decision of this Court in the case of The New India Assurance Co. Ltd. v. Surendra Patra and others, reported in 2009 (Suppl-II) OLR 400, and the decision of the Apex Court in the case of Pal Raj v. Divisional Controller, NEKRTC, reported in 2010 (4) TAC 79 (Para-16). 13. The claimant-respondent No.1 is not represented by a lawyer. Therefore, this Court vide order dated 27.7.2012 appointed one practising lawyer Mr. A.K. Choudhury as an Amicus Curiae to assist this Court. 13. The claimant-respondent No.1 is not represented by a lawyer. Therefore, this Court vide order dated 27.7.2012 appointed one practising lawyer Mr. A.K. Choudhury as an Amicus Curiae to assist this Court. He has rendered his able assistance by justifying the impugned judgment, findings and reasons recorded in the impugned judgment both regarding the compensation awarded and penalty of 50% with 12% interest on the awarded amount contending that the Commissioner on the basis of the pleadings framed four issues. Out of them, issue No.1 relates to "whether the petitioner is a workman within the meaning of Section 2(1)(n) of the W.C. Act ?". The same has been answered in favour of the workman on the basis of proper appreciation of legal evidence on record. He has placed strong reliance upon the definition of un-amended Section 2(1)(n) and amended Section 2(1)(n) by the Act of 46 of 2000 (w.e.f. 8.8.2000). 14. By a careful analysis of the aforesaid provision, the meaning of "workman" in terms of the said definition, he submits that the two ingredients which disentitles a person to be termed as a "workman", he must be employed on casual basis and he must be employed other than for the purpose of employer's trade or business. Even if one of the two ingredients is absent, then such a person can be termed as a "workman". Thus the word "and" occurring/appearing in between the words "other than a person whose employment is of casual nature" and "who is employed otherwise than for the purpose of the employer's trade and business" must be read conjointly. Even though the employment of a particular person may be of casual nature, but if that particular person is engaged for the purpose of employer's trade or business, he must be termed as a workman within the meaning of Section 2(1)(n) of the Act. The said interpretation has been made by various High Courts in the following decisions in the case of Shan v. Rajankutty, reported in' 2006 (1) TAC 407 (Ker) (para-4) rendered by a Division Bench of Kerala High Court; in the case of Secretary, Trivandrum Port and Headload Workers Co. Operative Society Ltd. v. Dhanesh Kumar alias Thampi and another, reported in 2001 (3) TAC 280, rendered by a Division Bench of Kerala High Court. Operative Society Ltd. v. Dhanesh Kumar alias Thampi and another, reported in 2001 (3) TAC 280, rendered by a Division Bench of Kerala High Court. The crux of all those decisions is seen in the words of Justice K.T. Thomas (as His Lordship then was) in the Division Bench decision in the case reported in Moideen v. Gopalan, 1996 (1) LLJ 1027, is referred. This Court in the case of The New India Assurance Co. Ltd. v. Mohan Kumar Sahoo and another, reported in 2003(11) OLR 388 (paras-16 and 18) has held that the workman driver was engaged for one day to drive the bus and sustained injury and the said substitute can be a workman if he is engaged for the service of principal employer and he is occupied in the performance of work or duties for the principal employer, if he is retained for the service of the principal employer. Even assuming that the deceased's employment on that day was of a casual nature, that by itself is not enough to push him out of ambit of the definition of "workman" because the casual nature of his engagement must couple with the definition that such employment should not be for the trade or business of the employer. The Division Bench of Patna High Court in the case of Smt. Sumitra Devi v. Executive Engineer, Udar Asthan Irrigation Division, Jahanabad, Gaya, reported in 1996 (1) TAC 447, has also taken the same view. The High Court of Andhra Pradesh in the case of District Magistrate Food Corporation of India, Kancharatalem, Visakhapatanam v. Gottavilli Venkata Ratamn, reported in 2003 (2) TAC 39 (A.P.), has also held that the wording used in the definition indicates that a person employed for the purpose of employer's trade or business comes within the definition of the "workman". The same view has been taken by the Division Bench of the High Court of Madhya Pradesh in the case of Babulal v. Jagatap Singh and another, reported in 2002 (3) TAC 87 (M.P.). The Division of the High Court of Kerala in the case of Kunjoonjamma Dantel v. Kerala State Electricity Board, reported in 2001 (2) TAC 556, has held that even if the employment is of casual nature, if the employment is for the purposes of employer's trade or business, one is a workman as defined under the Act. The Division of the High Court of Kerala in the case of Kunjoonjamma Dantel v. Kerala State Electricity Board, reported in 2001 (2) TAC 556, has held that even if the employment is of casual nature, if the employment is for the purposes of employer's trade or business, one is a workman as defined under the Act. Similar is the view taken in other decisions by the High Courts of Madhya Pradesh, Himachal Pradesh, Andhra Pradesh, Kerala, Rajasthan, Allahabad and Madras, which need not be referred to. 15. It is contended by Mr. Choudhury that the insurer, in case of default, is liable to pay interest on the compensation awarded under Section 4-A of the Act and therefore the award of interest is justified in view of the decision of the Apex Court in the case of Vedprakash Garg v. Premi Devi referred to supra, wherein the Apex Court in answer to the question "whether the Insurance Company which has insured the employer-owner's vehicle under the Motor Vehicles Act and against the claim for compensation arising out of the proceeding under the W.C. Act in connection with a motor accident is liable to pay the award including the interest and the penalty under Section 4-A ?". 16. He also placed reliance upon the decision of Three-Judge Bench of the Apex Court in the case of Pratap Narain Singhdeo v. Srinivas Sabata and another, AIR 1976 SC 222 , in which the Apex Court while answering the question "from which date the interest would be payable" after interpretation of Section 4(3) of the Act, which confers the jurisdiction on the Commissioner to direct the employer to pay the interest on the amount due if it is found that the employer is in default in paying the compensation due under the Act, within one month from it fell due, held as follows: "The employer, therefore, became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in course of his employment. It is, therefore, futile to contend that the compensation did not fall due until after the Commissioner's order under Section 19." 17. The said question has been reiterated in the case of Kerala State Electricity Board and another v. Valsala K and another etc. It is, therefore, futile to contend that the compensation did not fall due until after the Commissioner's order under Section 19." 17. The said question has been reiterated in the case of Kerala State Electricity Board and another v. Valsala K and another etc. etc., AIR 1999 SC 3502 , wherein the Apex Court after considering the earlier Three-Judge Bench decision in the case of Pratap Narain Singhdeo v. Srinivas Septa and another, referred to supra at paragraphs-2 and 3 has held that the relevant date for determination of the rate of compensation is the date of accident and not the date of adjudication of the claim. Similar view has been taken in another Three-Judge Bench of the Apex Court in the case of Maghar Singh v. Jaswant Singh, 1997 ACJ 517. 18. In the subsequent decision reported in the case of National Insurance Company Ltd. v. Mubasir Ahamed and another, AIR 2007 SC 1208 , the Apex Court has held that "the date falls due" means the date of adjudication of the claim by the Commissioner and not the date of accident without taking note of the earlier Larger Bench judgment of the Apex Court referred to supra. 19. Mr. Choudhury has rightly placed reliance upon the decision of the Supreme Court in the case of Union of India v. K.S. Subramanian reported in AIR 1976 SC 2433 and in Siddharaman Satlingappa Mehtra v. State of Maharashtra and others, 2011 (I) OLR 405 (SC), wherein it is held that where there is a conflict between the judgments of Larger/ Constitution Bench and subsequent decision of Benches of lesser strength, the judgment of Larger/Constitution Bench. The decision given without considering the earlier decision brought to the notice of the Court is against judicial discipline and law declared by the Apex Court in the case of C.C.T. Orissa and others v. Indian Explosives Ltd., reported in AIR 2008 SC 1631 . Therefore, the decision of the aforesaid Larger Bench with regard to the date for determination of interest on the compensation is applicable to the fact situation of the present case. Mr. Choudhury, therefore, submits that the appeal is devoid of merit and is liable to be dismissed as it involves no substantial question of law. 20. Therefore, the decision of the aforesaid Larger Bench with regard to the date for determination of interest on the compensation is applicable to the fact situation of the present case. Mr. Choudhury, therefore, submits that the appeal is devoid of merit and is liable to be dismissed as it involves no substantial question of law. 20. With reference to the above rival legal contentions urged on behalf of the parties, the questions that would arise for consideration by this Court are as follows: (i) Whether the finding on the question that respondent No.1 is a workman in terms of the definition of Section 2(1) (n) of the Act and the finding recorded in favaur of the claimant is erroneous or error in law? (ii) Whether the award of penalty under Section 4-A of the Act and the award of interest from the date of accident till the date of payment is in accordance with law or not ? (iii) Whether the finding recorded an the contentious issue No.4 is erroneous or error in law, which would constitute substantial question of law as required under Section 30 of the Act? (iv) What order ? 21. The said questions are required to be answered against the Insurance Company far the following reasons. The Workman Commissioner an the basis of the undisputed fact and the fact that respondent Na.1 was engaged by respondent Na.2-the owner of the vehicle and in course of employment respondent Na.1 sustained injury, which finding of fact is based an proper appreciation of fact in support of the workman is legal and valid and the reliance placed upon the provisions of Section 2(1)(n) placing reliance upon the decisions of the Apex Court, various High Courts as well as this Court by the' appellant are not tenable in law. The decision of the High Courts of Madhya Pradesh, Himachal Pradesh, Andhra Pradesh, Kerala, Rajasthan, Allahabad and Madras upon which Mr. Chaudhury placed reliance are well founded. The definition of workman under Section 2(1)(n) has been succinctly laid dawn, the principle that the workman who is employed by the employer even as casual employee, his employment necessitated by chance in permanent or regular employment even if a person is employed casually, he would be termed as workman under the Act the purpose of employer's trade or business. This Court in the case of The New India Assurance Co. This Court in the case of The New India Assurance Co. Ltd. v. Mohan Kumar Sahoo and another, reported in 2003(2) OLR 388 (paras-16 and 18), has held that the workman-driver was engaged far one day to drive the bus and sustained injury and if he is engaged far service to the principal employer and he is occupied in the performance of work or duties far the principal employer, if he is retained far the service of the principal employer and even assuming the employment an the day was a casual nature that by itself is not enough to push him out of the ambit of the definition of "workman" because the casual nature of his engagement must couple with the definition that such employment should not be far the trade or business of the employer. Therefore, the decisions of various High Courts referred to. supra upon which reliance is placed rightly by the learned counsel Mr. Choudhury are well founded and the same must be accepted and the finding recorded by the Commissioner of Workmen's Compensation an the contentious issue No.1 is legal and valid. The same is not vitiated an account of erroneous reasoning or error in law. 22. The question whether the Insurance Company is liable to pay penalty under Section 4-A(3) is no. longer res integra in view of the judgment of the Supreme Court in the case of Vedprakash Garg v. Premi Devi and others referred to supra. The question when the compensation falls due and from which date interest would be payable came up for consideration before the Larger Bench of the Supreme Court in the case of Pratap Narain Singhdeo v. Srinivas Sabata and another referred to supra, wherein it was contended that the compensation did not fall due until after the Commissioner's order under Section 19. In that case, personal injury was caused to the workman and the Apex Court held that employer became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workmen by the accident which admittedly arose out of and course of his employment. The contention urged that the compensation did not fall due until the Commissioner's order under Section 19 was held to be bad in law. The contention urged that the compensation did not fall due until the Commissioner's order under Section 19 was held to be bad in law. The said view has been reiterated by the Supreme Court in another case by Three-Judge in the case of Kerala State Electricity Board v. Valsala K referred to supra, in the case of Moghar Singh v. Jaswant Singh, 1997 ACJ 517. 23. Learned counsel for the appellant referring to the decision in National Insurance Co. Ltd. v. Mubasir Ahmed and another referred to supra contended that interest must be paid from the date of the award. It may be stated here that the aforesaid decision was rendered without taking note of the Larger Bench judgments of the Apex Court in the case of Pratap Nairain referred to supra. Mr. Choudhury submitted that the doctrine of precedent mandates that the law decided by the Larger Bench of the Supreme Court is to prevail over its later judgment of smaller strength. He has relied upon the decision reported in AIR 1976 SC 7433, wherein the Supreme Court held that the proper course for a high Court is to try to find out and follow the opinion expressed by the Larger Benches of the Apex Court in preference to those expressed by smaller Benches of the Court. Reliance has also been placed by Mr. Choudhury on Sidharama Satlingappa Mehtra's case referred to supra in which it is held that judgment of a larger strength is binding on a judgment of a lesser strength. The Apex Court in the case of Vedprakash Garg v. Premi Devi referred to supra, has held that the Insurance Company is liable to meet the claim for compensation along with interest. As far as the additional amount of compensation by way of penalty imposed on the insurer, the Insurance Company is not liable to reimburse the same. 24. In view of the aforesaid decision, the reliance placed upon the judgments of the Supreme Court and this Court by the learned counsel for the appellant regarding the interest payable from the date of award is wholly untenable in law and is liable to be rejected and is accordingly rejected. 25. 24. In view of the aforesaid decision, the reliance placed upon the judgments of the Supreme Court and this Court by the learned counsel for the appellant regarding the interest payable from the date of award is wholly untenable in law and is liable to be rejected and is accordingly rejected. 25. In my considered view, the submissions made on behalf of the workman in support of the findings and reasons recorded on the contentious issues are perfectly legal and valid and the same do not call for interference by this Court in exercise of appellate jurisdiction as no substantial question of law arises in this appeal. The appeal is devoid of merit and is liable to be dismissed. Accordingly, the appeal is dismissed with a cost of Rs.5,000/- (rupees five thousand) payable to the Amicus Curiae, which shall be complied with by the appellant by filing memo within two weeks. Further, the compensation awarded in the impugned judgment shall be paid to the workman with interest including the penalty amount within four weeks from the date of receipt of tile copy of this order. The same shall be sent by means of cross-cheque or demand draft in the name of the respondent No.1. If his address is not traceable, the same shall be traced from the office of the Tahasildar of the concerned area and amount shall be paid to him and report compliance of the direction issued in this judgment. Appeal dismissed with cost.